The Goripalayan Durga Through Its Present Manager, Sheik Ibrahim Sahib

Respondent

P. Kesavaswamy Iyer (Deceased) and ors.

Appellant Advocate

S.K. Ahmed Meeran, Adv.

Respondent Advocate

T.L. Venkatarama Iyer, Adv.

Cases Referred

See Parsotam Gir v. Narbada Gir

Excerpt:.....entitled to levy charge for water drawn by tenants form tank of landlord - landlord pleaded that water rate claimed part of rent lawfully payable by tenants - collector declined to go into question for reason that landlord's claim constituted enhancement of rent by reason of improvement which had not been registered under section 32 and claim barred by res judicata - decree which necessarily involves finding on issue in affirmative or negative even though no specific finding recorded on it would be res judicata in subsequent suit - there can be no res judicata laying down wrong rule of law between parties for future guidance - court in former suit expressly left undecided issues that arose for decision in present suit - it would be in contradiction to say that court had finally decided..........the tank became his and that for water drawn from the tank by them, the ryots were liable to pay water rate to the landholder. on this finding the land-holder would be entitled to claim the water rate as part of the 'rent' within the meaning of section 3 (2) (ii), madras estates land act. the learned district judge, however, disallowed the landholder's claim for water rate on the ground that it was barred by res judicata by reason of the prior adjudication in two suits for rent for fasli 1344 between the same parties. the former judgment is marked as ex. p-4. the learned judge made it clear at the same time that the bar of res judicata was confined only to the holdings covered by patta nos. 7 and 13 with which alone the former suits were concerned. the contention of mr. ahmed meeran,.....

Judgment:

Viswanatha Sastri, J.

1. These four second appeals arise out of four suits, two of which were instituted by two ryots for the grant of patta under Section 55, Madras Estates Land Act for Fasli 1353 and two by the landholder against the same two ryots for arrears of rent due for fasli 1351 to fasli 1353 under Section 77 of that Act. The ryots were the appellants in all the four appeals preferred to the District Judge of Madura from whose decision the landholder has preferred these four second appeals. The main question which arose for determination in all these four suits and appeals was whether the landholder was entitled to levy a charge for water drawn by the ryots from the tank of the landholder for cultivating dry lands comprised in their holdings with wet crops. It has been found by the learned District Judge that the solum of the tank vested in the landholder; that the water stored in the tank became his and that for water drawn from the tank by them, the ryots were liable to pay water rate to the landholder. On this finding the land-holder would be entitled to claim the water rate as part of the 'rent' within the meaning of Section 3 (2) (ii), Madras Estates Land Act. The learned District Judge, however, disallowed the landholder's claim for water rate on the ground that it was barred by res judicata by reason of the prior adjudication in two suits for rent for fasli 1344 between the same parties. The former judgment is marked as Ex. P-4. The learned Judge made it clear at the same time that the bar of res judicata was confined only to the holdings covered by patta Nos. 7 and 13 with which alone the former suits were concerned. The contention of Mr. Ahmed Meeran, the learned advocate for the appellant, is that the decision of the lower appellate Court on the question of res judicata is erroneous.

2. The facts connected with the previous litigation and the nature and effect of the prior adjudication have now to be stated. The land-holder brought S. S. No. 806 of 1936 and 808 of 1936 in the Court of the Deputy Collector, Melur division, against the two ryots with whom we are now concerned, claiming arrears of rent due on the holdings for Faslis 1342 to 1344 both inclusive. The tharam assessment or the dry rate payable in respect of the holdings was paid by the ryots but they disputed their liability to pay the extra charge claimed by the landholder for water drawn from his tank by the ryots for cultivating wet crops on their dry lands. During the pendency of these two suits, the two applications (M. P. nOS. 74 and 75 of 1936) were filed by the landholder before the same Collector under Section 30 (2), Madras Estates Land Act for enhancement of rent due on the lands in pattas Nos. 7 and 13 on the ground that he had effected an improvement to these lands by allowing water from a tank which he had maintained in a good condition, to be taken to these dry lands for the cultivation of wet crops and thereby caused the production of these lands to be increased. M. P. Nos. 74 and 75 of 1936 related to Faslis 1342 and 1843 and were evidently filed to meet the objection of the ryots that the landholder was, in effect, claiming an enhancement of rent in the two suits filed by him for recovery of a water rate, which he had not been collecting before, and that the landholder should have followed the procedure prescribed by Section 30, Madras Estates Land Act. Whatever be the reasons which led to the filing of M. P. Nos. 74 and 75 of 1936, they were dismissed by the Collector on 17-11-1936 on the ground that the improvements on the basis of which the enhancement was claimed, had not been registered in conformity with Section 32 (1) (a) of the Act. The order of the Collector is marked Ex. P-3.

On 1-12-1936 the Collector dismissed the suits for arrears of rent filed under Section 77 of the Estates Land Act (S. S. Nos. 806 and 808 of 1936) by a judgment marked as Ex. P-4 (which omitting unnecessary portions) ran as follows :

'These suits are therefore concerned only with the claim for the charge for water supplied to these dry lands . . . The decision on these suits clearly depends directly on the disposal of the petitions (M. P. Nos. 74 and 75 of 1936). The enhancement of rent claimed in these petitions having been refused, I cannot see how the same enhancement can be claimed in the suits. The plaintiff's vakil withdraws the plaint in these suits with respect to Faslis 1342 and 1343 in view of the decision given in M. P. Nos. 74 and 75 of 1936. Yet he affirms that the very same charge for water which he claims for Fasli 1344 and which was refused in M. P. Nos. 74 and 75 of 1946 is not an 'enhancement of rent' but is 'rent.' I cannot see the difference in the two cases--If the charge for water is admitted to be an enhancement of rent during the Faslis 1342-1343, the same charge made under the same circumstances, must necessarily be also an enhancement of rent for Fasli 1344 and it cannot be claimed in these suits, in view of the orders on M. P. Nos. 74 and 75 of 1936. Therefore, there is no necessity to go into the issues framed in the suits. The suits are dismissed with costs.'

I confess my inability to understand or appreciate the reasoning of the Deputy Collector which resulted in the dismissal of the suits for rent without even a consideration of the issues raised in the case.

3. In the suits which have given rise to the present appeals, the plea of the landholder is that he is entitled to the water rate claimed by him as part of the 'rent' lawfully payable by the ryots and this is not a case of 'enhancement of rent' within the meaning of Sections 30 to 32, Madras Estates Land Act. It may be stated at the outset that the landholder's claim is supported by the decision of this Court in Madura Kallalagar Devastanam v. Subbiah Ambalam : AIR1940Mad455 . But the contention of the respondent, accepted by the learned District Judge, is that the claim is barred by res judicata, by reason of the prior decision in S. S. Nos. 606 and 808 of 1936. I am unable to agree. The issues framed in the prior suits have not been exhibited in the present case, but the main contest between the parties was, whether or not, the tenants were liable to pay the water rate claimed by the landholder. The Collector declined to go into this question for the reason that, in his view, the landholder's claim constituted an enhancement of rent by reason of an improvement which had not been registered under Section 32 (1) (a) of Act I [1] of 1908. He, therefore, dismissed the suits in limine without taking any evidence at all. This view of the Collector was erroneous in law. There was no need for a landholder, claiming in addition to the tharam assessment a water rate, on the ground that the water from his tank had been drawn by the ryot for cultivating dry lands with wet crops to get an order for enhancement of rent from the Collector under Section 32 of Act I [1] of 1908. But it is argued that the decision dismissing the landholder's previous suit nevertheless constitutes res judicata. The decision on a preliminary point on which a suit fails may be res judicata in regard to that point itself in a subsequent suit whose subject-matter is the same. But as observed by Ramesam J.:

4. With reference to suits for grant of patta and recovery of rent under the Estates Land Act, if the terms and conditions of the tenancy generally are decided for a particular year in a litigation between the landlord and tenant, the decision would bind the parties in future years also, unless fresh circumstances intervene or there is an alteration in the law governing the rights of parties. The case would, however, be different if the former decision was based on facts and circumstances, special or peculiar to the year, with respect to which the prior decision was rendered--See Venkatanarasimha v. Venkataratnam, 32 M. L. J. 63 : A. I. R. 1918 Mad. 1309, Maharajah of Jeypore v. Ramamurthy, 57 Mad. 73 : A. I. R. 1933 Mad. 925; Narayana v. Subramania, I. L. R. (1937) Mad 364 : A. I. R. 1937 Mad. 254 . Strong reliance has been placed by Mr. T. L. Venkatarama Aiyar, the learned advocate for the respondent, on the decision of the Full Bench in Bayyan Naidu v. Suryanarayana, 37 Mad. 70 : A.I.R. 1914 Mad. 399 for the proposition that when the Collector dismissed the former suit for rent filed by the landholder, he must he deemed to have held by implication that the tenant was not chargeable with water rate in respect of his user of the water of the landlord's tank. It is quite true, that a decision would be res judicata even if it is not specific and express, provided it is necessarily implied in the decree. For instance, a decree which necessarily involves a finding on an issue in the affirmative or the negative, even though no specific finding was recorded on it, would be res judicata in a subsequent suit. This rule, however, can have no application, where, as here, the Court in the former suit has expressly left undecided the issues that arose for decision in the later suit. As observed by the Judicial Committee

'It would be a contradiction in terms to say that the Court had finally decided matters which it expressly left untouched and undecided.'

See Parsotam Gir v. Narbada Gir, 21 ALL. 605 : 26 I. A. 175 .

5. The Collector dismissed the previous suits for rent in limine on the sole ground that the landholder not having complied with the statutory requirements entitling him to an enhancement of rent, could not sue for the water rate which he had not hitherto collected. He declined to go into the question whether the tenant would be liable for the water rate as 'rent'. I consider that the view of the learned District Judge that the decision of the Collector in the previous suits operated as res judicata is incorrect.

6. I, therefore, reverse the decrees of the lower appellate Court and remand the appeal to the same Court for the passing of appropriate decrees in the four suits after determining the amount of water rate payable by the ryots. The court-fee paid by the appellants in these four second appeals will he refunded. There will be only one set of costs in S. A. Nos. 760and 908 of 1946 and another set of costs in S. A.Nos. 761 and 909 of 1946 payable by the respondent to the appellant. (Leave refused.)